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Lessons Learned From

Highland Towers
By Murgan D. Maniam, Pengarah Undang-Undang, Majlis Perbandaran Pulau Pinang

Architects and engineers owe a professional obligation to the public and their profession to
conduct themselves and practise their profession in accord with ethical standards. Local authorities
are also required to act reasonably and in accordance with the law.
Clients and the public place trust and confidence in the competence and skills of the professional
architects and engineers. Generally, both the professionals depend on the personal confidence of
the client in their technical competence; and the confidence of the public at large in the integrity
and ethical conduct of the professions as a whole.
It is the purpose of this paper to examine the decision of the High Court and the Court of
Appeal in respect of the roles played by the architect, engineer, developer and the local authority
in the development of the Highland Towers, and to learn the observations and rulings of the two
courts to give a greater insight and understanding of their respective roles.

H
ighland Towers, as is collectively known, The 10 Defendants were as follows:
consisted of three blocks of apartments known
as Blocks 1, 2 and 3. It was constructed (i) 1st Defendant - Developer
between 1975 and 1978. Directly behind the
three blocks was a steep slope. A stream (‘the east stream’) (ii) 2nd Defendant - Draftsman who was engaged
by the developer as the
originating upslope from the Metrolux land flowed across
Architect for the project
part of the slope.
On Saturday, December 11, 1993, about 15 years later,
(iii) 3rd Defendant - 2 nd Defendant’s brother
after 10 days of continuous rainfall, a landslide occurred engaged by the 1st Defendant
resulting in the collapse of Block 1. Forty-eight people as the Engineer for the project
were recorded dead. Immediately after the collapse of
Block 1, the residents of Blocks 2 and 3 were prevented (iv) 4th Defendant - Majlis Perbandaran
from entering their apartments by MPAJ for fear of the Ampang Jaya
instability of these two buildings. A few days later, they
were allowed in but only to collect their personal (v) 5th Defendant - Arab-Malaysian Bank –
valuables. At that time, their apartments were looted owner of 50 lots of bungalow
and subsequently vandalized. land directly at the rear of
Seventy-three owners and occupiers of the Blocks 2 Highland Towers
and 3 apartments brought an action against 10 defendants
(vi) 6th Defendant - Tropic - company that carried
in negligence, nuisance, strict liability under the rule in
out clearing works on the 5th
Rylands v. Fletcher and breach of statutory duty. The
Defendant’s land in 1992
Plaintiffs alleged inter alia that they had been unable to
re-occupy Blocks 2 and 3 emanating from the collapse of (vii) 7th Defendant - owner of Metrolux land (the
Block 1, as the result of MPAJ’s pre and post-collapse higher land adjacent to the 5th
acts and omissions. Defendant’s land)

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(viii) 8th Defendant - Project Manager for the 7th The Plaintiffs alleged that the 2nd Defendant had held
Defendant and was in charge himself out to be a suitably qualified, competent and skilled
of the development of the person to design, prepare and sign architectural and other
Metrolux land. building plans. In the performance of this task, the 2nd
Defendant has breached a common law duty of care to
(ix) 9th Defendant - Selangor State Government the Plaintiffs to take reasonable care and diligence in
ensuring that:
(x) 10th Defendant - Director of Lands and Mines,
Selangor
(i) the drainage required and rubble walls and the
earthworks were adequately and properly
JUDGMENT OF THE HIGH COURT
designed, supervised during its construction and
in compliance with the requirements as set by
The High Court found the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th
the authorities;
Defendants liable and apportioned liability in the following
percentages :
(ii) by the same acts or omissions, the 2nd Defendant
(i) 1st Defendant - 15% had created a nuisance on the hill slope behind
Highland Towers.
(ii) 2nd Defendant - 10%
The 2nd Defendant argued that he did not owe such
(iii) rd
3 Defendant - 10% duty of care to the Plaintiffs. Furthermore, even if such
duty of care exists, it was not breached. He explained
(iv) 4th Defendant - 15% that he was only engaged to design the three apartment
blocks and was never involved in the design, supervision
(v) 5th Defendant - 30% and construction of drains, rubble walls and earthworks
within and outside of Highland Towers site; he submitted
(vi) 7th & 8th Defendants - 20% that the 1st Defendant (Developer) carried out these works.
He played no part in them. He also submitted that the
After due consideration, the court ruled that the intervening acts of the 4th, 5th, 7th and 8th Defendants in
landslide that brought down Block 1 was a rotational altering the condition of the area caused the collapse of
retrogressive slide emanating from the high wall behind
Block 1 and exempted from liability.
the second tier car park. The High Court also decided
A building draftsman is only permitted under the
that Block 1 had collapsed due to a landslide caused
Architect’s Act 1967 to design buildings of no more than
primarily by water which emanated from the damaged
two storeys in height and limited floor space. In this case,
pipe culvert, and the inadequate and unattended drains
on the 5th Defendant’s land. each block of Highland Towers consisted of 12 storeys
The judgment of the High Court has since been reported with a built area far exceeding that allowed for a building
as Steven Phoa Cheng Loon & Ors v Highland Properties draftsman to undertake. The 2nd Defendant managed to
Sdn. Bhd. & Ors (2000) 4 MLJ 200. induce a relevant Government department to grant him a
‘specially authorised person’ status under a repealed
LIABILITY OF THE 2ND DEFENDANT – THE ARCHITECT enactment (the Architect Ordinance 1951) which he
claimed entitled him to summit and oversee construction
The 2nd Defendant was an Architectural Draftsman. works of three apartment blocks.
He drew and submitted the layout plans for and on behalf The court held that this would make no difference to
of the 1st Defendant. The 2nd Defendant knew that he was the duty of care the 2nd Defendant owed. James Foong J
not a fully qualified and registered architect. When the said:
layout plan was approved subject to conditions, the 2nd
Defendant prepared and submitted the building plans. ‘When this Defendant had represented himself as a
The 2nd Defendant, whilst submitting the layout plans qualified architect to all and sundry, as displayed by
and building plans, had held himself out as a registered
his actions, then he must be judged according to the
architect. The local authority, by some error on their part
character he had assumed.’
in not checking the 2nd Defendant’s credentials had in
fact permitted him to submit such plans.
The extent of his duty, said the judge:
CF was issued for the three blocks on the following dates:

(i) Block 1 - 29.9.1978 ‘Is primarily to his client because he has a contractual
relationship with him. But in law, an architect is
(ii) Block 2 - 6.11.1981 also liable to anyone who is sufficiently proximate
and whom the architect could foresee that his act
(iii) Block 3 - 24.5.1985 and/or omission would cause damage to that person.

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….. At the time when this Defendant exercised his
duty as an architect for the Highland Towers project,
he must have foreseen that the apartments he built
would be sold, and purchasers, their servants and or
agents would be occupying them. ….. he must have
or ought to have them in contemplation when he
was directing his mind to his acts and/or omissions.’
By this, a duty of care existed between the 2nd
Defendant and the Plaintiffs.
The 2nd Defendant had also argued that he had no
responsibility for the drainage or earthworks or anything
else beyond the design and supervision of construction
of the apartment blocks. To this, the judge held:
‘I think the 2 nd Defendant is under a serious
misapprehension that an architect is engaged just
to design and supervise the construction of a building
and need not bother with the surrounding area where
the building is to be erected. Surely the primary
consideration for the construction of any building,
or structure for that matter, besides the aesthetics
aspect, is the safety of the building. To achieve this,
the condition of the land on which the building is to
be built as well as those in the vicinity must be
considered and evaluated, particularly if it has
potential adverse effects to the building planned.’
‘…… He must ensure that no soil from the hill slope
would come crashing down on his designs. …..’
‘…… the 2nd Defendant did foresee the danger of not
exercising his professional skill, care and diligence
in attending to the initial and basic factors regarding
drainage and the stability of the hill slope. As an
architect, or someone who represented himself as
one, he must have foreseen the dangers that if no
proper, adequate and sufficient drainage system and
retention walls were built, there would be danger to
the buildings erected below. Yet he neglected this
basic duty. The intervening acts of the third parties
may not be foreseen by him, but if a proper, adequate
and sufficient drainage system and retaining walls
were implemented and erected, then the collapse of
Block 1 may not even have occurred.’
On the facts, the court found the 2nd Defendant had
breached his duty of care to the Plaintiffs. The 2nd
Defendant was held to have ‘failed in his duty as an
architect and had also refused to comply with the
requirements imposed by the authorities on the drainage
of the area. Besides that, he had also colluded with the
1st and 3rd Defendants (Developer and Engineer) to obtain
CF for the three apartment blocks of the Highland Towers
without fulfilling the conditions as set out by the 4th
Defendant (MPAJ).
The 2nd Defendant argued that the Plaintiffs’ claim
for pure economic loss i.e. compensation to make good
the defective building or for a replacement thereof which
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the 2nd Defendant was engaged to build cannot be
maintained.
The court held that a claim for pure economic loss can
be maintained against a Defendant, and therefore ruled
that the Plaintiffs’ claim for negligence and nuisance is
established against the 2nd Defendant.
LIABILITY OF THE 3RD DEFENDANT – THE ENGINEER
The 3rd Defendant was a qualified civil engineer. The
2 Defendant appointed the 3rd Defendant, who was his
nd
brother, to be the consulting engineer for Highland Towers.
Initially, the 3rd Defendant’s scope of works was restricted
to the structural aspect of the three blocks. But
subsequently, the 3rd Defendant was engaged by the 1st
Defendant to submit proposals over the drainage of the
area. His drainage plan was approved. He was also
retained by the 1st Defendant to design and supervise the
construction of two retaining walls on the Highland Towers
site.
The Plaintiffs claimed that the 3rd Defendant was
negligent for the following reasons:
(i) designing unsuitable foundations;
(ii) lack of care and concern of the hill and slope;
(iii) issuing a notice to the authorities confirming the
drainage works was completed when only a
fraction of it was done.
By the above acts of preparing, designing and
supervising the construction of Highland Towers and the
drainage system of the Highland Towers site, he was
negligent and had caused nuisance to them.
The 3rd Defendant had used rail piles welded together
as foundation to support the three apartment blocks. This
type of piles, which was considered inferior to concrete
piles, was accepted in the engineering and building
industry to support high-rise buildings at the material
time. Thus, no fault can be attributed to the 3rd Defendant
in using the rail piles as he was only adhering to the
accepted professional practice at that time.
However, there was lack of consideration by the 3rd
Defendant to the hill and the slope directly behind the
three blocks. The court ruled that the 3rd Defendant should
have reasonably foreseen the danger of a landslide
producing a lateral load against the foundation of the
building. For this, he should have exercised care to either
design and construct a foundation to accommodate the
lateral load or ensure that the slope was reasonably stable.
Failure to do so is a breach of his duty of care he owes to
the Plaintiffs since his duty was to ensure the safety of
the buildings he designed and built.
The 3rd Defendant’s attempt to deny liability on the
ground that he relied on the 1st Defendant to ensure that
other retaining walls were constructed properly was
unsuccessful. The judge found that it was encumbent
upon the 3rd Defendant to enquire and ascertain whether
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the work was that of a qualified professional and what its
impact might be on the safety of his own building. The
judge agreed with a passage from the judgment of Bingham
LJ in the case of Eckersley v. Binnie (1988) 18 Con LR 1
@ p.80
‘…… a professional man should command the corpus
of knowledge which forms part of the professional
equipment of the ordinary member of his profession.
He should not lag behind other ordinarily assiduous
and intelligent members of his profession in knowledge
of new advances, discoveries and developments in his
field. He should have such awareness as an ordinarily
competent practitioner would have of the deficiencies
in his knowledge and the limitations of his skill. He
should be alert to the hazards and the risk inherent
in any professional task he undertakes to the extent
that other ordinarily competent members of the
profession would be alert. He must bring to any
professional task he undertakes no less expertise, skill,
and care than other ordinarily competent members of
his profession would bring, but need bring no more.
The standard is that of the reasonable average. The
law does not require of a professional man that he be
a paragon combining the qualities of polymath and
prophet.’
Although the drainage plan was approved by the
authorities, it was not fully implemented by the 1st
Defendant. The reasons offered by the 3rd Defendant for
this failure were:
(i) shortage of financial resources of the 1 st
Defendant;
(ii) the need to bring down the road level to fit the
drains; and
(iii) prohibition on rock blasting in the area
Nevertheless, the court ruled that whatever the excuse
may be, it did not entitle and warrant the 3rd Defendant to
issue a notice to the authorities stating that the entire
approved drainage proposal was implemented when only
10% was completed. This was a gross violation of his
duty of care which, as a consultant engineer for the three
blocks, he owes to the Plaintiffs as purchasers of Highland
Towers, particularly when this approved drainage system
was so fundamental to the safety of the building. The
judge issued a powerful condemnation by saying as
follows:
‘I have reiterated my strong sentiments against this
type of attitude of professionals whose only
consideration is to guard and secure their own interest
rather than their duties and obligations to those closely
affected and the public on which so much faith and
reliance are placed on them to carry out their
professional duties. I need not elaborate further except
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to remind this Defendant that he has to live out the
rest of his life knowing truly well that he had
contributed to the tragedy of Highland Towers.’
The 3rd Defendant was found liable in negligence
and nuisance.
LIABILITY OF THE 1ST DEFENDANT – THE DEVELOPER
The Plaintiffs claimed the 1st Defendant liable in negligence
for the following reasons:
(i) Not employing reasonably fit, competent, skilled
and qualified persons to design, draw, sign and
submit architectural and engineering drawings
and plans for the construction of Highland Towers
and the hill slope behind it;
(ii) Not vetting through their appointments to ensure
that they are competent and possess such skill
for the task they are employed to undertake which
involves enquiries and investigations into their
credentials and qualifications;
(iii) Constructing insufficient and inadequate
retaining walls on the Arab-Malaysian land and
the Highland Towers site without considering the
surrounding terrain, soil condition and drainage
requirement;
(iv) Constructing drains that were insufficient to effect
proper and adequate drainage of water run-offs
on the slope and those originating from the East
Stream;
(v) Diversion of the East Stream from its natural path
to the pipe culvert which ran horizontally across
the hill slope directly above the three blocks;
(vi) Obtaining CF to occupy the three blocks when
the drainage system in the Highland Towers site
and the Arab-Malaysian land was incomplete.
The court relied upon the dictum of Lord Finlay LC in
Greenock Corp. v. Caledonian Rly Co. (1917)AC 556 which
is quoted by Abdul Hamid FJ in the Federal Court case of
Seong Fatt Sawmills Sdn. Bhd. v. Dunlop Malaysia
Industries Sdn. Bhd. (1984) 1 MLJ 286 @ p 291.
‘It is the duty of anyone who interferes with the course
of the stream to see that the works which he substitutes
for the channel provided by nature are adequate to
carry off the water brought down even by extraordinary
rainfall, and if damage results from the deficiency of
the substitute which he has provided for the natural
channel, he will be liable.’
The court exonerated the 1st Defendant from the
allegation that they were responsible for the negligence
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of their consultants after appointment. The court held
that the 1st Defendant would only be liable if the works
involved were ‘of an extra hazardous nature’ which was
not the case here.
The court held that the 1st Defendant were liable in
negligence and nuisance.
LIABILITY OF THE 4TH DEFENDANT –
MAJLIS PERBANDARAN AMPANG JAYA (MPAJ)
The High Court held MPAJ liable in respect of the
following :
(i) At the planning and design stage of Highland
Towers, MPAJ had not taken reasonable care, skill
and diligence in checking the plans submitted to
ascertain whether they are reasonably fit for the
purpose it was intended for. This included matters
relating to water courses, streams and rivers in
the vicinity of the Highland Towers site, Arab
Malaysian land and the surroundings which were
under the jurisdiction of MPAJ.
(ii) At the construction stage of the Highland Towers,
MPAJ failed to exercise reasonable care, skill and
diligence to ensure the drainage system and the
rubble walls on Arab Malaysian land were
adequately provided for and/or constructed in a
workman-like manner before the issuance of the
Certificate of Fitness to the three apartment
blocks;
(iii) MPAJ failed to maintain and upgrade drains and
rubble walls on Highland Towers site and Arab
Malaysian land, and to provide adequate drainage
requirement to water courses, streams and rivers
after the Highland Towers was constructed;
(iv) MPAJ failed to take remedial measures to remove,
rectify and/or minimise the hazards posed on the
Arab-Malaysian land and the surroundings after
the collapse of Block 1;
(v) MPAJ failed to prevent vandalism and theft at
Blocks 2 and 3 in the aftermath of the collapse
of Block 1;
(vi) MPAJ failed to maintain the East Stream which
was under its jurisdiction;
According to the court, MPAJ owes a duty of care to
the Plaintiffs to use reasonable care, skill and diligence to
ensure that the hill slope and the drainage thereon were
properly accommodated before approving building or
other related plans, and during construction stage, to
comply with and to ensure the implementation of the
drainage system. Then, when Certificate of Fitness was
applied for, there should be proper and thorough inspection
on whether the buildings so built were safe in all aspects
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and not just confined only to the structure, and after the
Highland Towers was erected, to ascertain drainage
requirement in the area was adequate to ensure slope
stability behind Block 1. Subsequent to the collapse of
Block 1, measures should have been taken to prevent
recurrence of the tragedy to Blocks 2 and 3.
The court found that MPAJ owed a duty of care to the
Plaintiffs and that this duty had been breached resulting
in damages.
Upon establishing that MPAJ was negligent, the High
Court was influenced by Sec.95(2) of the SDB Act 1974,
which provided an immunity to the Plaintiffs’ claims and
the passage in Dr. Abdul Hamid Abdul Rashid & Anor v.
Jurusan Malaysia Consultant & Ors (1997) 3 MLJ 546:
‘If there is any fear that this approach may encumber
the local authorities to pay out substantial claims
due to their negligence in granting approvals or
inspecting building works, there is s 95 of the Street,
Drainage & Building Act 1974 (Act 133) which
prohibits such authorities to be sued.’
In discussing the above Sec. 95(2), the High Court
pointed that Parliament can create an exemption from
liability for certain acts committed by local authorities
and its officers. James Foong J said:
‘It is my view that s 95(2) of the 1974 Act is just
such a piece of legislation to exempt the local authority
and its officer from negligent act related to and
connected with certain specified activities. In our
case, since the acts of the 4th Defendant found to be
negligent by this court are within those specified
activities under s 95(2) of the 1974 Act, immunity
applies to the 4th Defendant.
Further, the High Court explained that Sec. 95(2) covers
situations:
(i) ‘whatsoever arising out of building or other works
carried out’ by the 4th Defendant in accordance
with the provision of the said Act.
(ii) ‘or by reason of the fact that such building works
or the plans thereof are subject to inspection and
approval’.
The acts of negligence of which MPAJ was accused of
inter alia, approval of plans, inspection and issue of CF
were all covered by this immunity. Thus Sec. 95(2) applies
to acts/omissions committed by MPAJ pre-collapse.
However, the immunity could not cover the post- collapse
actions of MPAJ and for these, they were liable.
MPAJ had undertaken to prepare a master drainage
plan to ensure the safety of Blocks 2 and 3. After a period
of one year, there was no sight or news of such a plan.
MPAJ offered no explanation as to why its promise was
not met. Thus, MPAJ was held liable for post-collapse
management of the situation which included failure to
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prevent vandalism and theft in Blocks 2 and 3 as well as
failure to produce the master drainage plan. MPAJ was
also liable in nuisance by reason of its failure to maintain
properly a stream which formed part of the drainage
system of the area.
JUDGMENT OF THE COURT OF APPEAL
The 1st, 2nd, 6th, 9th and 10th Defendants did not appeal
against the decision of the High Court. The 3rd, 4th, 5th, 7th
and 8th Defendants appealed against that decision.
MPAJ filed an appeal to the Court of Appeal against
the whole decision of the High Court except that part
which decided that MPAJ was not liable for all pre-
collapse acts by virtue of Sec. 95 of the SDB.
Although the High Court excluded liability for pre-
collapse acts on the part of MPAJ on the basis of Sec.
95(2) of the SDB, MPAJ had raised the grounds of appeal
in the Court of Appeal that independently of Sec. 95(2) of
the SDB, MPAJ had not been negligent at all because :
(i) at the planning and design stage, MPAJ had relied
on the skill and diligence of the Architect (2nd
Defendant) who submitted those plans as well as
the various Government agencies which vetted
those plans.
(ii) at the construction stage of the Highland Towers,
MPAJ had relied on the skill and diligence of the
1st, 2nd and 3rd Defendants to supervise the said
construction and had relied on the Certificates
of the Architect (2nd Defendant) that all the works
had been completed in compliance with the
approved plans.
(iii) the Highland Towers and the surrounding areas,
after completion and after Certificate of Fitness
had been issued, had been maintained by the 1st
Defendant.
(iv) the drains in Highland Towers and the Arab
Malaysian land were never in the control of
MPAJ.
(v) the East-Stream was diverted from its natural
course by the 1st Defendant as found by the High
Court.
(vi) the drainage of the Highland Towers and the
Arab-Malaysian land was functioning effectively
until the 5th Defendant took over the Arab-
Malaysian land.
(vii) at no time did the Plaintiffs complained to MPAJ
of the dangers of the state of the drains in the
Highland Towers and the Arab-Malaysian land.
In considering the appeal of MPAJ against liability,
the Court of Appeal ruled that there are two separate
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matters that must be addressed. These are the pre-collapse
and post-collapse liability.
The Court of Appeal observed that assuming that there
was a duty on the 4th Defendant (MPAJ) to act in a
particular manner towards the property of the Plaintiffs
post-collapse, such duty must find its expression in public
and not private law. Accordingly, if there had been a
failure on the part of MPAJ to do or not to do something
as a public authority, the proper method is to proceed by
way of application for judicial review. Thus the High
Court’s finding that MPAJ was liable for negligence after
the collapse was set aside.
Next, the Court of Appeal looked at the pre-collapse
position. The Plaintiffs submitted that Sec. 95(2) did not
apply to the facts as MPAJ had directed the East Stream
to be diverted from its natural course. The carrying out
of these works created a danger to the Plaintiff’s property.
Accordingly, this is not a case of inspection or approval
of building or other works or the plans thereof. This is a
case where a danger was expressly created by MPAJ. The
Court of Appeal agreed with this submission and set aside
the indemnity granted to MPAJ by the High Court for
negligence before the collapse.
The Court of Appeal ruled that there is no proposition
of law that a local authority such as MPAJ may never
owe a common duty of care to the third party. It all
depends on the particular circumstances. The kind of
harm that was foreseeable by the 5th Defendant was equally
foreseeable by the MPAJ. Upon the evidence and the
relevant principles, it was clear that MPAJ, as a reasonable
local authority must have foreseen the danger created by
diverting the East Stream would probably be a landslide
of the kind that happened and that in such event resultant
harm, including financial loss of the kind suffered by the
Plaintiffs would occur.
The Court of Appeal dismissed the appeals of the 3rd,
5 , 7th and 8th Defendants and affirmed the apportionment
th
of liability made by the High Court amongst the
Defendants.
The judgment of the Court of Appeal has since been
reported as Arab- Malaysian Finance Bhd. v Steven Phoa
Cheng Loon & Ors (2003) 1 MLJ 567. It appears that the
Court of Appeal has departed from the clear finding of
fact by the High Court that it was the 1st Defendant who
diverted the East-Stream and substituted their own finding
that it was MPAJ who diverted the East-Stream.
Furthermore, although the High Court made a very clear
finding of fact that it was the 1st Defendant who diverted
the East-Stream, the Court of Appeal declared that it was
MPAJ that diverted the East-Stream. The Court of Appeal
held that MPAJ owed a common law duty of care to the
Plaintiffs to avoid pure economic loss. It also held that
MPAJ is a Joint Tortfeasor along with the other Defendants.
It was argued that at all material times, MPAJ did not
have qualified people to deal with planning application.
The role of MPAJ was that of an intermediary by
forwarding that application to the respective departments,
district technical departments e.g. JKR, Health, State
Planning Departments and other authorities relating to
26

that particular application. There was clear evidence
that MPAJ had relied upon the skill of the Architect (2nd
Defendant), the Engineer (the 3rd Defendant) and the
Developer (1st Defendant) as well as the checking of the
accuracy of the said plans by the relevant departments
(the 9th and 10th Defendants). The High Court held that
Sec. 95(2) SDB protected MPAJ for all acts of MPAJ pre-
collapse, including the checking of the accuracy of the
plans submitted and the failure to detect any danger in
the said plans.
However, the Court of Appeal held that Sec. 95(2) SDB
does not apply to the facts of the present case since MPAJ
had directed that the East-Stream be diverted from its
natural course and that such an act of MPAJ was caught
by the doctrine of Kane v New Forest District Council
(2001) 2 All ER 914. In Kane, the local authority
specifically required the footpath to be created. In the
present case, it was the 3rd Defendant on behalf of the 1st
Defendant who submitted the plans relating to the drains
to be implemented on the 5th Defendant’s land. In Kane,
all the parties including the local authorities were aware
that the construction of the footpath would be dangerous.
Despite the said knowledge of danger, the local authority
went ahead with the construction of the footpath.
However, in the present case, the drainage plan was
conveyed by MPAJ to JPS. JPS recommended approval
of the drainage plan. Thus the issue of danger in the
present case did not arise at all.
Furthermore, in Kane there was no equivalent statutory
provision such as Sect. 95(2) of the SDB. In Kane, it was
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also argued that local authorities enjoyed blanket
immunity in law in respect of anything done in the exercise
of the planning functions. Thus it can be said, that the
Court of Appeal had erred in relying on Kane as a basis
for depriving MPAJ the indemnity afforded by Sec.95(2)
of the SDB.
CONCLUSION
The judgments of the High Court and the Court of
Appeal cannot be lightly regarded. They discuss the causes
of the collapse of Block 1 which may arise from a variety
of circumstances. Every architect, engineer and developer
must never allow an unsafe condition to persist or develop
at the construction site. They should also ensure at all
times that there is no threat to public health and welfare
and remember two assets which are vital to the practice
of their profession – their integrity and their ability.
On February 6th, 2004, the Federal Court has granted
MPAJ leave to appeal to the Federal Court on four main
issues inter alia whether Sec. 95(2) of the SDB is wide
enough to provide immunity to a local authority in
approving the diversion of a stream and in failing to detect
any danger or defect in the building and drainage plans
relating to the development submitted by the architect
and/or engineer on behalf of a developer.
Local authorities will welcome the decision of the
Federal Court as it would put to rest the debate as to
whether Sec.95(2) of the SDB provides absolute immunity
or qualified immunity.

SUMMARY

The decisions of the High Court and the Court of Appeal confirmed that architects and engineers have a duty
to secure the safety, health and welfare of the public in the performance of their professional services.
The architects and engineers owe a duty to exercise the skill, care and diligence which may reasonably be
expected of a person of ordinary competence, measured by the professional standard of the time. Thus an
architect’s and engineer’s general inexperience and lack of knowledge do not furnish a valid excuse for unprofessional
conduct.
The architects and engineers are to be judged by the professional standards prevailing at the time the work
was done, not by what may be known or accepted at a later date, or what may be seen only with the benefit of
hindsight.
The courts emphasised that every architect and engineer owe a duty to third parties to ensure that they are
sufficiently qualified to undertake the assignments for which they accept professional responsibility. The architects
and engineers must also know when to seek a competent specialist in areas outside their expertise.
In this case, the Court of Appeal was unable to see how MPAJ could possibly escape liability for requiring the
diversion of the East Stream. This infers that a local authority should not direct or do anything to make the site
dangerous; otherwise it will be liable.
Although the courts did not discuss in the ground of the Judgment the certification given by the architects and
engineers on the plans submitted by them to exonerate MPAJ, these professionals’ duty must always be reflected
on the plans, by requiring the architects and engineers to certify that they are responsible for supervising the
construction of the project to ensure that it is built in accordance with the approved plans, specifications and
drawings.
The local authorities should be entitled to rely on the certificate executed by the architects and engineers and
to hold them responsible for the structural design, safety and supervision of the project. This would enable the
architects and engineers to retain control over the design and erection procedures so as to be able to advise the
contractor of any special construction or safety consideration. BEM

BULETIN INGENIEUR 27